20190417 TZHC Mwanza2

..J . ,. ,,. . ! IN THE i··HG·H COURT ()F l'ANZANIA NiWANZA DiS'fRICT Rf:GISTRY AT MWANZA CRl!\11NAL APPEAL NO 275 OF 2018 (Arising frorn Judgment and Orders of the District Court of Bundo of Bunda {Hon. Rugema!ilo RM) in Economic ·Cose . No 51 of 2017 dated 11.09.2018) . -~. CH.t,GUCHE RY OBA _ _ _ _ _ _ _ _ 1sr APPELLANT VER.SUS ' THE REPUBLIC _ _ _ _ _ _ _ _ _ _ _ _ RESPONDENT · Date of last order; 10.04.2019' ' ln f:conorrilc Case No. 51 of 2017, before the District Court of ·Bunda .at Bunda, (Rugerndlila Rlvl}, the_ Appellants, \Vere charged v,1ith -three offences ·of unlawful entry ~n a Ga.me Reserve. coniTary to secH01i ·15 ( 1) and. (2) of the· Wildiife Con_servat-ion- AcL No. 5 of 2009 (the WCJ\), unlawful possessions of vveopons ir. a Gorr1e Reserve and lastly, for hav/ng been found in unlovvful poss$ssion of Government Trophi~s Contrary . to Section 86(1) and (2) (b) of . the VvC/\ 1. I t ' read together with paragrapl·) 14 (d) of the first schedule to 1 lhe Economic and Organized Crime Control Act, [Cop 200 RE 2002] (the EOCA). According. to the particulars of offence in the first count of unlawful entry into the Game Reserve is that, on 11.06.2017 at· Grumeti · River into lkorongo/Grumeti Game Reserve within Bunda District, the Appellants were found to hav_e entered lherein without-permission of the Director of Wildl°ife having previously been soLJght and obtained. In the second count, the Appellants were on 11.06 . 2017, alleged to have been found in possession of one bush knife, one knife and l O animal trapping wires at Grumeti River into lkorongo/Grumeti. ·Game Reserve. In that respect the Appellants are alleged to hove failed to satisfy the Authorized Officer that the weapons in their possession were intended to be • used by them for purposes, other than hunting, killing and wounding or capturing animals. On the last count of unlawful possession of Government Trophies, the prosecution was of the positio_n that on 11.06.2017, at ·Grumeti River into lkorongo/Grumeti Game Reserve within Bunda District, the Appellants were found in unlawful possession of two hind limbs, ·two fore limbs, one head connected wi.th a neck and· -two side ribs all ·fresh meat of .wildebeest, equivalent to one wil_debeest killed valued of Tshs 1,443·,ooo, · being the property of the Government of Tanzania. 2 Both Appellants pleaded n61 guilty which fact led to full hearing of their case. At the closure of the trial the accused persons were both found guiliy of all the offences they had 51 bee·n charged with and they were each sentenced as follows; I . 1. For the 1st count of unlawful entry in tine Game Reserve each was to pay Tshs l 00,000/= or to serve 2 years term . . 1n pnson. 2. For the .2 nd count of unlawful possession· of weapons, each accused person was to pay Tshs 200,000/= or ·to . serve 2 yea.rs term in prison. . . I' ' 3. For the 3rd count of unlawful possessioh of Government _Trophies, each accused person -was sentenced to 20 years imprisonment. Ii' is r,ot clear if any of the Appellants, paid any fine in lieu of the imprisonment in the first and seconq counts, but at least they were each in total sentenced to serve 24 years 1n prison tn case no one paid any fine. The Appellants were aggrieved by both conviction and the sent~nce imposed upon each of them. They, therefore· . . lodged a Petition of Appeal containing 5 grounds ·of fa\ppeal. All grounds ore challenging the Judgment of the trial court for having convicted them based on evidence ' which vvas not sufficient to found a valid .conviction. For re_asons of economy of -time and· others thaf will evolve 3 ~ momentarily, I will neither list nor paraphrase the grounds challenging the Judgment of the trial court. )'.- When the Appeal was colled for hearing on 10.04.2019, the Appellants appeared each in person and the Respondent was represented by Ms~ Ajuoye Bilishanga, learned Senior State Attorney. Both parties assured me that they were ready to proceed with the hearing. · · The reason this Judgment took the course it will maintain as we proceed, is because when I was preparing for trial of this Appeal, I spotted something that had not gone right before tr_ial of this case being on Economic Cose in a subordinate court. As a matter of low, for an. economic matter to be tried in a subordinate court, there are at least two requirements that need to be fulfilled, by the Prosecution and that need to be crosschecked as to, their fulfilment by the subordinate court in question. The legal requirements ore, firs.tly, there must be a Consent lnstru_ment issued by the Director of Public Prosecutions {OPP} or an officer from the Notional Prosecution Services (NPS) dully authorized by the OPP. This· Consent is issuable under the provisions of Section 26( 1) of the EOCA. Although I noted the availability or presence of -this document on record, but the same had a . . _serious legal defect. The defect was that the Instrument did · not specify any provision in·· respect of which· the subordinate court was given consent to try. The substance of the Consent ·instrument reads; 4 "CONSENT OF THE STATE ATTORNEY INCHARGE I, LUKELO SAMWEL, State Attorney In-charge Mara Region, do hereby in terms of Section 26(1) of the Economic and Organized Crime Control Act; [Cap 200 ,_) RE 2002j and GN N_o. 284 of 2014 CONSENT to the prosecu.tion of CHAGUCHE s/o RYOBA and· MOYI s/o MARWA for contravening the provisions of paragraph _ _ _ _of the 1st schedul_e to, of (sic) the Economic and Organized Crime Control Act [Cao 200 RE 2002] the particulars of which · are stated in the Charge Sheet. DATED at MUSOMA this 14 th qay of June 20_17 Sgd ' PRINCIPAL STATE ATTORNEY IN-CHARGE" The blank space .in the 7th line.' of the Consent Instrument is what caught my eye, and thati is the defect of the Consent because of which I will necessarily hold that the same is defective. ) ' Another matter for which had interest to hear from the · learned Senior State- Attorney was on_ yet another instrument. This is called techni~ally a Certificate to Confer Jurisdiction to the Su_bordinate'. ·Court to try an economic offence. The same is issuable, under section 12(3) of the EOCA. . ~ . . I This one was better than the Consent but, like it, the some had issues to resolve. I will ; quote the ·body of that Certificate; "CERTIFICATE CONFERRING JURISDICTION ON SUBORDINATE COUR~JO TRY AN ECONOMIC CASE t LUKELO SAMWEL, State AUorney In-charge Mara Region, do hereby in terms of Section,_· 12(3) of the Economic and Organized Crime Control Act, [Cap 200 RE 2002] and GN No. 284 of 2014 ORDER that CHAGUCHE s/o RYOBA and MOYI s/o .MARWA who are charged for contravening . the_ provisions of · paragraph 14 of the 1st schedule to, · of (sic) the Economic and Organized Crime Control Act,. [Cap 200 RE 2002}- BE TRIED by the District Court of BUNDA a_t BUNDA. . DATE_D at MUSOM.A this 14th day of June 20:17. ' Sgd I PRINCIPAL STATE ATTORNEY IN-CHARGE" ' ' So before I permitted hearing 9f the substantive Appeal to start, I put the iss·ues to the learned Senior State Attorney for her to address the Court on thet legality or otherwise of these instruments. Ms. Bilishanga, confirming my w9rries, submitted at length· · on the illegality of the -two documents. She :started -off with the co·nsent Instrument. She submitted that· the same was illegal and invalid in the eyes of the law because it did not show which provisions that the· State Attorney In-charging- . was giving consent to the ·oistric.t Court· to try. She submitted . . • I ' that the om1ss1on was very fatal to the proceedings. She I • ., : I 6 : I I added that the Consent was void and 1n effect, she submitted, the resultant trial in the District Court was so tried without any valid consent of the OPP. As for the Certificate issued under section 12(3)· of the EOCA, she submitted that the same was no better. She stated that although the Certificate specified paragraph 14 of the 1st Schedule to the ·EOCA, but that paragraph lists numerous laws, so she stated th.at the Certificate ought to have been specific as to the sections creating offences contained in the charge·, which requirement, the Certificate fell short of. She concluded this· part by·submitting that in the eyes of the · law both the Consent Instrument and the Certificate Conferring Jurisdiction on the Subordinate Court to try an economic offence· were void. Because of that she concluded that in the circumstances no valid Consent was · _given and also no Jurisdiction was conferred on t~e District Court of Bunda to try the offences charged. As for the remedy, she moved the Court to nullify the proceedings, quash the conviction and set aside the sentence earlier imposed on the Appellants and order a retrial ·of the case. When I required the 1st _Appellant to react to the· submissions· of the learned Senior State Attorney, like the latter, he submitted that I should nullify the proceedings, quash the cohviction and set aside the sentence but unlike the 7 · ~ · !'earned Senior Sta1e Attorney he move me acquit the _ . Appellants and set them free. , The 2nd Appellant submitted that acquit them of the ) offences charged but he left the decision ir:i the hands of the Court. , In this jurisdiction, subordinate courts do not hove jurisdiction to try economic offences. They must first have· jurisdiction conferred upon them by the OPP or an officer duHy authorize by him. This is the requirement of Section l2(3) of the EOCA. That section provides as follows; "12(3) The Director of Public Prosecutions or any State Attorney duly authorized by him, may, in each case in which he· deems it necessary or appropriate in the public interest, by certificate, under his hand, order · that any case involving an offence triable py the Court under this Act, be tried by such court subordinate to the High Court as he may' specify in the ce1ificate." Whot is to be gathered from the above provision is that a subordinate court cannot try a matte_r that falls under the EOCA, except where, jurisdi~tion is specificaUy_ conferred on it. In addition to conferring jurisdiction still a subordinate court·. _will not try an economic case until the some officer (the OPP) consents to such trial by is~l)ihg a Consent Instrument under section 26 ( 1) of the EOCA. Section 26 :( 1) of the EOCA . provides as follows; 8, jl26(1) Subject to the provisions of this section, no trial in respect of an economic be offence may commenced under this Act may be commenced save with the Consent of the Director of Public Prosecutions". · ) It means, a trial of an economic offence is not feasible in · the subordinate court unless a consent is issued under the above section of the law. It is the holding of this Court that -such consent should be obtained before trial of an economic case. If the con_sent is not in place or if the same- is defective like in this App~al, the trial is a nullity, as submitted by the learned Senior State Attorney .. Hoving noted that in this Appeal the Consent Instrument - and the Certificate were both nullities, I hasten to call to my. aid the provisions of section 373( 1) of the CPA and revise the proceedings of. the trial ,court thereby nullifying the proceedings and the judgment. In the same breath, I quash the conviction and set aside the various sentences imposed on the Appellants by the District _Court of Bunda in Economic Case No. 51- of 2017.: Hoving reached at the above position, _do I now remit the matter to the trial court for retrial as impressed on me by the learned Senlo~ State Attorney or I acquit the Appellants as submitted t9 me by° the · Appellants. A decision on this aspect is critical_ and a cot1siderable degree of_ legal maturity needs to be deployed. I will however, not _toke a long time on this issue crucial a~ it is. I 9 _l I . , -. ·· In the Appeal betvv1een ABRAHAMAN ADAMSON MVVAMBENE VERSUS THE REPUBLIC, CRIMINAL APPEAL 148 of · 2011 {CA) (MBEYA), unreported, the Court of Appeal, in a I I situation like the same as we are into, ruled as follows at -)·, page 6; · "In · this case, we have regrettably noted, the mandatory requirements of section 26(1) and 12(3) and (4) of the Economic Crimes Act were flagrantly violated by bpfh the prosecution and the court. We are accordingly constrained to agree with · the appellant and Ms. Gwaltu that the prosecution and the trial of the appellant and. his co-accused were a nullity ab initio .....·we hereby quash and set aside the null proceedings· in, and the Judgment of, the two courts below as well as all the sentences· imposed on the appellant and his co-accused who, we have learnt, were acquitted by the Hig.h Court at Mbeya in Criminal Appeals No 70 and 71 of 1998 but on the basis of a totally different ·reason. For the good reason assigned by Ms. Gwaltu and the improbability of the witnesses. for both sides either at all easy, we shall not order a retrial." This decision, has helped me immensely. In the above case, the issue of. retrial was not opted because of one reason. The reason was that it would not be a light _duty to find -the witnesses v:Vho should come to give evidence afresh. In the Appeal at hand, I have not heard anybody statjng that there will be any difficulties in obtaining either witnesses or any such. thing necessary for purposes of a .retrial. When 10 1 ' I ··.· l asked on what will happen because, the hind limbs, the fore t . limbs and the wildebeest head attached to neck can't be · in existence today, how would then the existence of such trophies be establishes in court; the reaction of the learned . :)1 Senior State Attorney, to this curiosity, was that everything was in order, because there was an inventory prepared · before destruction of the exhibits. Finally, based on the above findings, ·this Court makes the following orders; l. The proceedings and Judgmer]t in Economic Case No. 51 of 20 l 7 that was passed by the District Court of Bunda on 11.09.2018 are hereby declared a nullity .. 2. The conviction of the Appellants is quashed and various sentences imposed on both Appellants . including that of 20 years imprisonment are hereby set aside. 3. The Director of Public Prosecutions or .his authorized officers are at liberty to try the Appellants de novo in a court of competent jurisdiction. 4·. Pending trial de novo, the AppeHants shall continue to be held in custody as re_mandees. ·5. The proceedings (if any) against the Appellants shall be instituted within a period of 21 working days from today" 17.04.2019. If no charge shall be instituted or any proceedings commenced against the Appellants in the said 21 working days, the prison authorities or any 11 ' authorities holding the Appellants in any kind of ·. · restraint or custody, shall immediately . release the Appellants from custody and set them to liberty. _); 6. Non prosecution of . the Appellants after" 21 working. · days counting from 17.04.2019, shall be an acquittal of the Appellants by this Court. 7. The original file in Economic Case No 5·1 of 2017 be remitted to the District Court of Bunda for their recor.ds. It is so ordered Z. N. Galeba JUDGE 17.04.2019 Lastly, any party aggrieved by this decision has a right of Appeal to the. Court of Appeal of Tanzaniq according to law .. DATED at M WANZA this l 7th April 2019 --z-- ~ ' ·-·~ · Z. N. Goleba JUDGE 17.04.2019 12 . I I .j • 2t Judgment delivered this 1~th Aprril ?019 in the presence of .· · ·. the Appel.lants and Ms. AJuaye B1llshanga, learned Senior i State Attorney for the Respondenit . . _..---c·;::, ~.. ~·. .-'-~ . .· ,:•;. :·: ::,::,· .. · - \ Z.N. Galeba s--~, · . .•. · -, .· ·,. · . ·JUDGE I . .. · f:, .04.20~ 9 i' • I I . ' 13